A probate attorney, commonly referred to as an estate attorney, focuses on assisting a Personal Representative through the entire probate process from beginning to end. A probate attorney can be an invaluable resource because the laws in each state are different with regard to probate proceedings and all of the requirements imposed by the probate court. In fact, the first piece of advice for a personal representative is “hire an attorney.” Here’s why.
What is involved in estate administration?
When someone dies, the assets which make up their estate must be distributed to their heirs. In many cases, in order for those assets to be properly distributed the estate must go through the probate process. Probate involves several steps, including proving the existence of a valid will if there is one, identifying the property and creating an inventory, appraising the property as necessary, paying debts, funeral expenses, and taxes, and then distributing the remaining property to heirs and beneficiaries.
Is it really necessary to hire a probate attorney?
In order to decide whether to hire a probate attorney, you should ask yourself several questions. If your answer to most of these questions is “yes,” the more likely you need the advice and expertise of a probate attorney. These questions determine how difficult the process will likely be and the potential for additional complications
Will your state’s general probate proceedings be necessary?
In most states, an estate can qualify for a simpler proceedings if the estate is relatively small. Your state may have what’s called “summary probate,” which provides for a simpler, more streamlined process. In some case, you may be able to nearly bypass probate entirely with a basic sworn statement. In California, the limit for a small estate is $150,000. However, if the estate you are involved with does not qualify for any type of simplified probate process, then it would be best to hire a probate attorney to help you through the often lengthy and complicated probate proceeding.
Family members are likely to have disputes or contest the will
If the family members involved are already not getting along, or it seems that a will contest is inevitable, then you should speak to a probate attorney as soon as possible. If there is a good chance that a family member will file a legal action to contest some aspect of the estate administration, you need help. Unfortunately, it is all too common for a probate lawsuit to tear a family apart, while also costing the estate tons of money. Your probate attorney may be able to assist you in avoiding litigation or at least finding an efficient resolution.
Does the estate have complicated assets?
If the estate includes commercial real estate for example, a business or other assets that require special treatment, then you should hire a probate attorney right away. Especially with a business, you need an expert to help you appraise and sell the business, if there are no business succession plans in place.
There may not be sufficient money to pay the debts
The best case scenario for a personal representative is an estate with sufficient cash to pay the debts, taxes and expenses, with assets remaining to pay the beneficiaries or heirs. If that is not the case, however, then you will need to be able to determine which debts to pay first. Depending on the laws of your estate, certain creditors have priority over others who may have a claim. If you don’t know how that works, you need to seek legal advice immediately.
Based on the size of the estate, there will be federal estate taxes imposed
In most cases, the value of the estate will be low enough not to incur federal estate taxes. In 2016, with the exemption amount currently at $5.45 million, nearly all estates are able to avoid federal estate taxes. However, there are some estates that exceed the exemption amount. More likely, if the deceased lived in a state that imposes estate taxes as well, there may still be a tax liability to deal with. Currently, fifteen states and the District of Columbia impose an estate tax. California does not. You will definitely need expert legal and tax advice if the estate needs to file an estate tax return.
If you have questions regarding probate, or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
Timothy P. Murphy
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